BIHARI LALversusTHE STATE OF RAJASTHAN & ORS.

                          [2019] 6 S.C.R. 47                             47


                           BIHARI LAL                                    A
                                  v.
              THE STATE OF RAJASTHAN & ORS.
                 (Criminal Appeal No. 676 of 2019)
                          APRIL 15, 2019                                 B
               [ABHAY MANOHAR SAPRE AND
                 DINESH MAHESHWARI, JJ.]
       Penal Code, 1860: ss.307, 323, 325, 336 and 341 r/w s.34 –
Accused-respondent no.2-4 were prosecuted for commission of              C
offences punishable under ss.307, 323, 325, 336 and 341 r/w s.34
IPC – Before the trial court, the case of the accused persons was
that while framing the charges, no offence under s.307 IPC was
made out against them and, therefore, no charge should have been
framed against them under s.307 and in support of their case, they
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referred to and placed reliance on the two medical reports which
were filed by prosecution along with the charge sheet – Trial court
discharged them from offence under s.307 and proceeded to frame
the charges in relation to other offences – Revision petition filed by
complainant-appellant before the High Court against the discharge
order was dismissed – Appeal by complainant – Held: Both the Courts      E
below wrongly appreciated the two medical reports, found fault and
inconsistencies therein and then came to a conclusion that no prima
facie case was made out against respondent Nos. 2 to 4 insofar as
the offence under s.307 IPC was concerned – The stage to appreciate
the evidence with a view to find fault or/and inconsistencies in the
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two medical reports arise only when the prosecution leads evidence
by examining the doctors in support of the medical reports – That
stage was yet to come in this case – Mere perusal of the medical
reports filed by the prosecution prima facie showed that a case
under s.307 was made out against respondent Nos. 2 to 4 and,
therefore, the charge under s.307 ought to have been framed against      G
them along with the other charges – Trial court seized of the trial is
directed to frame the charge under s.307 IPC against respondent
Nos. 2 to 4.


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48            SUPREME COURT REPORTS                         [2019] 6 S.C.R.


A          Allowing the appeal, the Court
            HELD: The stage to appreciate the evidence with a view
     to find fault or/and inconsistencies in the two medical reports
     would arise only when the prosecution leads evidence
     by examining the doctors in support of the medical reports.
B    That stage is yet to come in this case. Trial court is directed
     to frame the charge under s.307 IPC against respondent Nos. 2
     to 4. [Paras 14, 15, 16][50-B-E]
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
     No. 676 of 2019.
C          From the Judgment and Order dated 12.09.2018 of the High
     Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal Revision
     No. 708 of 2018.
           H. D. Thanvi, Ms. Preeti Thanvi, Rishi Matoliya, Advs. for the
     Appellant.
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          Samar Vijay Singh, Hardeep Singh Sundria, Anish Maheshwari,
     Yunus Malik, Ms. Saroj Bala, Milind Kumar, Advs. for the Respondents.
           The Judgment of the Court was delivered by
           ABHAY MANOHAR SAPRE, J.
E          1. Leave granted.
            2. This appeal is directed against the final judgment and order
     dated 12.09.2018 passed by the High Court of Judicature for Rajasthan
     at Jodhpur in S.B.Criminal Revision No.708 of 2018 whereby the Single
     Judge of the High Court dismissed the criminal revision filed by the
F    appellant herein and affirmed the order dated 02.06.2018 passed by the
     Additional Sessions Judge, Bhadra, District Hanumangarh in Sessions
     Case No.40 of 2017.
           3. A few facts need mention hereinbelow for the disposal of this
     appeal, which involves a short point.
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           4. Respondent Nos. 2, 3 and 4(accused persons) are facing
     prosecution for commission of the offences punishable under Sections
     307, 323, 325, 336, and 341 read with Section 34 of the Indian Penal
     Code, 1860 (hereinafter referred to as “IPC”) in the Court of Additional
     Sessions Judge, Bhadra District Hanumangarh.
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      BIHARI LAL v. THE STATE OF RAJASTHAN & ORS.                               49
              [ABHAY MANOHAR SAPRE, J.]

       5. Learned counsel for respondent Nos. 2 to 4 herein (accused            A
persons) argued that while framing the charges, no offence under Section
307 IPC is made out against them, therefore, no charge should be framed
against them under Section 307 IPC. Respondent Nos.2-4 argued this
point by referring to and placing reliance on the two medical reports,
which were filed by the prosecution along with the charge sheet in support
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to their case.
       6. The Additional Sessions Judge, by order dated 02.06.2018,
accepted the argument of respondent Nos. 2 to 4(accused persons) and
accordingly discharged them from the commission of the offence
punishable under Section 307 IPC and proceeded to frame the charges
in relation to other offences mentioned above. In other words, the              C
Additional Sessions Judge was of the view that there is no prima facie
case made out against respondent Nos. 2 to 4 (accused persons) so far
as the offence under Section 307 IPC is concerned.
       7. The appellant (complainant) felt aggrieved and filed a criminal
revision before the High Court. By impugned order, the High Court               D
dismissed the criminal revision which has given rise to filing of this appeal
by way of special leave by the appellant (complainant) in this Court.
      8. So, the short question, which arises for consideration in this
appeal, is whether both the Courts below were justified in discharging
respondent Nos. 2 to 4 (accused persons) insofar as the offence under           E
Section 307 IPC is concerned.
      9. Heard Mr. H.D. Thanvi, learned counsel for the appellant and
Mr. Samar Vijay Singh, learned counsel for respondent Nos.2-4(accused
persons) & Mr. Anish Maheshwari, learned counsel for respondent
No.1(State).                                                                    F
       10. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are constrained to allow this appeal and set
aside the impugned order.
       11. In our considered opinion, both the Courts below erred in
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discharging respondent Nos. 2 to 4 from the charge of Section 307 IPC.
In other words, both the Courts below erred in holding that no prima
facie case is made out against respondent Nos. 2 to 4 under Section 307
IPC and hence no charge can be framed for their prosecution for
commission of the offence under Section 307 IPC.
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50              SUPREME COURT REPORTS                         [2019] 6 S.C.R.


A           12. Indeed, the manner in which both the Courts below proceeded
     to discharge respondent Nos. 2 to 4 from facing the charge of Section
     307 IPC and holding that no prima facie case is made out against them
     is faulty and hence cannot be sustained.
           13. In our view, both the Courts below wrongly went on to
B    appreciate the two medical reports, found fault and inconsistencies therein
     and then came to a conclusion that no prima facie case is made out
     against respondent Nos. 2 to 4 insofar as the offence under Section 307
     IPC is concerned.
           14. The stage to appreciate the evidence with a view to find fault
C    or/and inconsistencies in the two medical reports would arise only when
     the prosecution leads evidence by examining the doctors in support of
     the medical reports. That stage is yet to come in this case.
           15. Mere perusal of the medical reports filed by the prosecution
     would prima facie show that a case under Section 307 IPC is made out
D    against respondent Nos. 2 to 4 and, therefore, the charge under Section
     307 IPC should have been framed against respondent Nos. 2 to 4 along
     with the other charges.
            16. In view of the foregoing discussion, the appeal succeeds and
     is accordingly allowed. The impugned order is set aside. The Additional
E    Sessions Judge, who is seized of the trial, is directed to frame the charge
     under Section 307 IPC against respondent Nos. 2 to 4 herein.
            17. We, however, make it clear that respondent Nos. 2 to 4 will be
     entitled to argue after the evidence is adduced that no case is made out
     against them under Section 307 IPC and the Court will decide the matter
F    on the basis of evidence adduced by the prosecution on its merits strictly
     in accordance with law without being influenced by any observations
     made by this Court.


     Devika Gujral                                                Appeal allowed.

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